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Butler Oak Tavern v. Division of Alcoholic Beverage Control

Decided: August 22, 1955.

BUTLER OAK TAVERN, A CORPORATION, PLAINTIFF-APPELLANT,
v.
DIVISION OF ALCOHOLIC BEVERAGE CONTROL, DEPARTMENT OF LAW AND PUBLIC SAFETY, STATE OF NEW JERSEY, AND WILLIAM HOWE DAVIS, DIRECTOR OF SAID DIVISION, DEFENDANTS-RESPONDENTS



Hughes, Hetfield and Mariano. The opinion of the court was delivered by Mariano, J.s.c. (temporarily assigned).

Mariano

Plaintiff appeals from an order of the Division of Alcoholic Beverage Control revoking its plenary retail consumption license.

On December 21, 1954 written charges were filed against the appellant where it was alleged that it did, on two separate occasions on December 18, 1954, sell cases of whiskey at less than the minimum price established in the then current effective minimum resale price list published by the then Director of the Division of Alcoholic Beverage Control. On December 23, 1954 an additional written charge was preferred against the appellant wherein it was alleged that it did on December 21, 1954 sell a case of whiskey at less than the minimum price thereof. The said sales were made in violation of Rule 5, State Regulations No. 30 of the Alcoholic Beverage Control Division, promulgated and adopted pursuant to statutory authority. See N.J.S.A. 33:1-23.1. To these charges the appellant entered pleas of non vult. Apparently, in accordance with his practice, the Director granted the request of the licensee to appear personally before him on the question of penalty and fixed the date of March 1, 1955 for oral argument respecting the penalty to be imposed.

The illegal sales were made by one Joseph Dilzer who, together with his wife, owns 48 of the 50 shares of stock issued by the appellant corporation. In October 1940, while Dilzer held a license individually, the local issuing authority suspended the same for five days because of a curfew infraction. In September 1943 the then Commissioner of Alcoholic Beverage Control suspended his license for 20 days after he had pleaded guilty to the charge of having refilled four bottles of alcoholic beverage with other tax-paid liquor. In February 1947 his first minimum price violation resulted in a 20-day penalty with five days off for a confessive plea. In July 1949 he received a 25-day penalty with five days off for a confessive plea for a second minimum price violation. In May 1952, although the proceedings were dismissed because of a failure to prove the charge by a preponderance of the evidence, there was enough in the record to suspect that the defendant

(Dilzer) was selling case lots of whiskey at less than the minimum price established therefor.

Appellant urges that the penalty of revocation was so unduly harsh as compared with penalties imposed in similar cases before and since the violations in question as to be arbitrary.

The entry of the pleas of non vult eliminated all issues of law or fact and waived all defects of record except those relating to jurisdiction and left nothing remaining except the imposition of the penalty. State v. Pometti , 12 N.J. 446, 452 (1953); In re 17 Club, Inc. , 26 N.J. Super. 43 (App. Div. 1953).

The extent of the penalty to be imposed rests within the sound discretion of the Director of the Division of Alcoholic Beverage Control. Grant Lunch Corp. v. Driscoll , 129 N.J.L. 408 (Sup. Ct. 1943), affirmed 130 N.J.L. 554 (E. & A. 1943), certiorari denied 320 U.S. 801, 64 S. Ct. 431, 88 L. Ed. 484 (1944); In re Larsen , 17 N.J. Super. 564-573 (App. Div. 1952); Mitchell v. Cavicchia , 29 N.J. Super. 11 (App. Div. 1953); Benedetti v. Board of Commissioners of Trenton , 35 N.J. Super. 30, 35 (App. Div. 1955).

The burden of rebutting the presumption of validity and regularity of the administrative action rests upon the appellant. Carls v. Civil Service Commission , 31 N.J. Super. 39 (App. Div. 1954), affirmed 17 N.J. 215 (1955); Welsh Farms, Inc., v. Bergsma , 16 N.J. Super. 295 (App. Div. 1951).

Appellant contends that the Director in imposing the penalty under review abused the discretion reposed in him. In substantiation of this contention appellant directs our attention to the decisions of the Director dealing with penalties imposed by him for minimum price violations during the years 1954 and 1955 and to decisions dealing with penalties imposed by the Director for miscellaneous offenses where there have been previous records of convictions, all of which penalties are less severe than that imposed upon the appellant.

Appellant further contends that by reason thereof the action of the Director of the Division of Alcoholic Beverage Control in revoking the license was arbitrary, capricious and denial of the appellant's ...


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